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She submitted that the interpretation sought to be placed on the entries in the export tariff by the appellant will carve away a substantial category of the goods de scribed in the wide tariff entry from its scope. ARG |
So far as agricultural cess is concerned, she pointed out, .rightly, that it was leviable only in respect of "seeds", an expres sion that imports a concept of a capacity to germinate, particularly, in an agricultural context. Ratio |
Obviously, the groundnut kernel, roasted and salted, could not be described as 'seeds ' and therefore, the Government of India had rightly exempted them from agricultural cess. Ratio |
According to counsel, the functional test may be attracted where there is a bifurcation or classification as in the tariff entries referred to on behalf of the appel lant but there is no justification to import any such test where the expression, as in this instance, is broad and unrestricted. Ratio |
Referring to the exemption from export ban, learned counsel submitted that the very fact that it was considered necessary to exempt the blanched and roasted peanuts from the export ban indicates that otherwise they would have been included in the export ban. Ratio |
Learned counsel took us through the 151 orders of the appellate authorities and the tribunal and submitted that they have taken a correct view in the matter which does not call for any interference. Ratio |
She submitted that groundnut kernel remains groundnut kerneI even after roasting and frying. Ratio |
The process, though described elaborately on behalf of the appellant, does not create a different product. Ratio |
This, she pointed out, was the finding of the appellate authorities. Ratio |
There is no justification, therefore counsel contended to read any limitation into the export entry. Ratio |
Having considered the submissions of both parties, we are of opinion that the contention of the Revenue should prevail. ARG |
To our mind, there is no difficulty or ambiguity in the interpretation of the tariff entry. Ratio |
Groundnut is a well known commodity which is available both in shell and as kernel. Ratio |
In this context, 'kernel ' clearly means the grain, seed or the soft matter inside the shell, whatever the use or purpose to which it is put, eating or crushing for oil or sowing. Ratio |
On behalf of the appellant, it is emphasised that the goods exported by the assessee and groundnut oil seeds are totally different commercial commod ities. ARG |
Even the acceptance of this argument does not carry the appellant 's case to the desired ARG |
Assuming that two different commercial commodities fail under the same entry, there is no reason why the entry should be restricted to only one of them. Ratio |
It can and should cover both unless one can say that the commodity marketed by the appellant is not 'groundnut kernel '. Ratio |
We are not convinced that the goods exported by the assessee have ceased to be groundnuts in the ordinary accep tation of the term or that they have become a different commodity, say, a processed food (indeed, there is no such classification in the tariff entry). Ratio |
The decision in Diwan Chand (Chaman Lal, [1977] 39 STC 75 turned on the descrip tion of groundnuts in Schedule C of the Punjab Sales Tax Act as a species of oil seeds and it was held that parched groundnuts constituted a different commodity. PRE |
But the fact is that, though the raw groundnut kernel has undergone a drying. Ratio |
roasting and frying process, its identity as ground nut is not lost. Ratio |
Even in the market to which it is exported and where it is marketed, it is purchased only as groundnuts (or peanuts, as they are called in the U.S.A.). Ratio |
May be there are two 152 different commodities but both are known only as 'ground nuts '. Ratio |
The argument that the scope of the entry should be restricted because of the two fold classification existing elsewhere between groundnuts as "oil seeds" and groundnuts as "fruits, nuts and edible substances" does not appeal to us. Ratio |
In the first place, it does not meet the argument that basically both items are only varieties of groundnuts and hence not taken out of the relevant entry. Ratio |
Secondly, there is force in the argument of State counsel that the legisla ture has, deliberately, not adopted, for the purposes of the Second Schedule, the minute multiclassification of the First Schedule and allied classifications. Ratio |
Unlike the Import Tariff, the BTN and the ITC, there is no sub classification ' attempted in the export entry. Ratio |
The legislature must be presumed to know that, for import purposes, for instance, groundnuts are classified under different headings with differential rates of duty. Ratio |
Those entries appear not else where but in the First Schedule of the very enactment which sets out the export tariff. Ratio |
The First Schedule to the Indian Tariff Act refers to seeds, oil seeds and oil in section II and talk only of canned fruits and vegetables in section IV (dealing with products of food preparing industries). Ratio |
The entries in the Customs Tariff relating to imports have already been touched upon. Ratio |
If, in spite of such detailed classification elsewhere, the legislature decided to use a wider expression in the Second Schedule, the intention of the legislature must be given effect to. Ratio |
Shri Dholakia submitted that while the need to restrict imports necessitated a detailed enumeration and precise classification, the export duty is levied only on a short list of items. ARG |
This may be so but this point of distinction is not enough to explain why, when an entry finds a place in the export tariff, it should not receive its normal interpretation but should receive one circumscribed by the entries in the import tariff or other classifications. Ratio |
A point was also made by Sri Dholakia that, since the export duty is on the basis of tonnes and it is only the groundnut oil seed that is exported in units of tonnes, the entry should be confined to this commodity alone. Ratio |
This, we are afraid, is a very precarious basis for the interpretation of the body of the entry. Ratio |
In this context, we should also point out that no difficulty, anomaly or absurdity arising out of the computation of export duty in terms of tonnes on these goods was brought to the notice of the authorities at any stage. Ratio |
It may perhaps have helped if material had been placed before the authorities as to the nature and magnitude of the exports of the two classes of groundnuts, their relative prices and the duty impact there on. Ratio |
In the absence of any such material, we find it diffi cult to hold that the commodity in question should be excluded because of the mode of computation of duty 153 prescribed by the tariff entry. Ratio |
Once it is realised both oil seeds and roasted ground nuts exported by the assessee are capable of being described as 'groundnut kernel ', which is what the entry talks of the various circumstances pointed out that they have different markets, that their end use is different, that one of them has been excepted from the... |
For these reasons, we are of opinion that the stand of the Revenue has to be upheld and the decision of the Madras High Court in Kalaivani Fabrics (supra) overruled. RPC |
These appeals, therefore, fail and are dismissed. RPC |
We, however, make no order as to costs. RPC |
R.S.S. Appeals dis missed. RPC |
Civil Appeal No. 105 19 of 1983. FAC |
From the Judgment and Order dated 12.9.1983 of the Punjab and Haryana High Court in W.P. No. 3798 of 1983. FAC |
M.S. Gujral, S.K. Bagga, Ms. Bagga, S.D. Sharma, B,S. Gupta. FAC |
P.C Kapur, R.N. Mittal, S.D. Gupta, S,M. Ashri and K.K. Mohan for the Appellants. FAC |
R.S. Sodhi and C.M. Nayyar for the Respondents. FAC |
The Judgment of the Court was delivered by RANGANATHAN, J. FAC |
The appellants were in service as tube well operators in the irrigation branch of the Public Works Department of the Punjab State. FAC |
The State took a decision to transfer all the tubewells in this branch to the Punjab State Tubewell Corporation (hereinafter referred to as 'the Corporation '), a company wholly owned and managed by the State of Punjab. FAC |
Consequent on this decision, a notification was issued on 30th November, 1982 to the effect that "the posts sanctioned for the Tubewell Circle, Irrigation Branch, Punjab, are no longer needed in the public interest. FAC |
" It was, therefore ordered that all the permanent posts sanc tioned for the above circle be abolished with effect from 1.3.1983 and that all temporary posts be discontinued with effect from the same date. FAC |
A little earlier, on 31st August, 1982, the petitioners were served with notices in terms of section 25 F of the (hereinafter referred to as 'section 25F ') terminating their services with effect from 30th November. FAC |
These notices were, however, set aside as not being in consonance with clause (c) of section 25 F. The State Government, therefore, issued fresh notices terminating the services of the petitioners with effect from March 1, 1983. FAC |
These notices were also set aside by the High Court on the ground that they did not conform to the provisions of clause (b) of section 25(F). FAC |
Thereupon the State served fresh notices on the petitioners terminating their services in terms of section 25 F with effect from August 31, 1983. FAC |
The appellants once again approached the High Court contending that the decision of the State Govern ment transferring the tubewells to the Corporation and terminating their services was invalid. FAC |
It was contended: (a) that the impugned notices did not fulfil the requirements of clauses (b) and (c) of section 25 F; (b) that the notifica tion by which the tubewells were transferred was mala fide, the only object of the transfer being to frustrate certain claims of the petitioners which had been judicially recog n... |
These contentions were rejected by the High Court. FAC |
It held that the notices did not suffer from any defect. FAC |
It was pointed out that the writ petitions had been filed before the expiry of the date from which the retrenchment notice was to be effective, namely, 31st August, 1983. FAC |
The re trenchment notice itself specifically mentioned that the retrenchment compensation, as admissible under the rules, will be paid before the notice of retrenchment took effect and that it could be collected personally from the respond ent 's Sub Divisional/Divisional Officers. FAC |
At the instance of the Court, the State had filed an additional affidavit in which it was averred that drafts in respect of the amounts of compensation had been despatched to the divisional of fices in the manner following Tubewell Division Malerkotla Between 25 to 27 August, 1983 Tubewell Division Hoshiarpur Between 1... |
The High Court was satis fied that the State had despatched individual bank drafts in respect of each of the employees well in advance of the date of expiry of the notice period and that the despatch of these drafts to the divisional offices constituted a good and valid tender of the compensation amount to the appellan... |
The court held that this was sufficient compliance with the provisions of clause (b) of section 25 F. So far as the provisions of clause (c) of section 25 F were concerned, the High Court was satisfied that the requisite notice in the prescribed form 'P ' was sent to the Secretary to Government, Labour Department and t... |
Pointing out that the requirements of clause (c) of section 25 F 373 were only directory and not mandatory, the High Court was of the opinion that the notices were not vitiated due to non compliance with clause (c) of section 25 F. Turning to the allegation regarding mala fides, the contention of the appellants was thi... |
They submitted that the tubewell operators in the Irrigation Branch of the PWD had filed a writ petition, being C.W.P. 3340 of 1972, in the Punjab High Court claiming parity of pay with the tubewell operators employed in the Public Health Department of the State Government. FAC |
That petition was allowed on February 5, 1981. FAC |
But the respondent authorities failed to implement the directions contained in that judgment, thus forcing the petitioners to move a contempt application (No. 221 of 1981). FAC |
Thereafter, the State authorities gave effect to the judgment and paid arrears to the petitioners in the writ petition but did not extend the benefit thereof to the tubewell operators other than the actual petitioners in the writ petition. FAC |
The other tubewell operators, thus denied the benefits of the judgment, were constrained to file three more writ petitions seeking the extension of same relief to them. FAC |
These writ petitions were allowed on 7.8.1981 in terms of the earlier decision dated 5.2.1981. FAC |
The respondent authorities chose to file S.L.P. Nos.9195 to 9197 of 198 1 in the Supreme Court but these were dismissed on 19.2. FAC |
Still, the respondent authorities showed their reluctance to implement the judgments of the High Court compelling the petitioners to file three contempt petitions (Nos.294 to 296 of 1981) against the defaulting authorities. FAC |
However, before the disposal of these writ petitions, the State filed a letters patent appeal against the judgment in C.W.P. No. 3340 of 1972 and obtained an order staying the operation of the said judgment. FAC |
Consequent on this, the contempt applications had to be withdrawn and were dismissed as such on 8.4. 1982. FAC |
We are told that the letters patent appeals have been dismissed recently on 7.8. 1990. Ratio |
Accordingly to the appellants, the authorities took a decision to transfer the tubewells of the irrigation branch to the Corporation only with a view to deprive the appellants of the benefit they had gained as a result of the above litigation. Ratio |
It was pointed out that the Corporation had come into existence as early as 1970. Ratio |
Its main objects, as set out in the Corporation 's memorandum of association, were, inter alia: XXX XXX XXX (2) To take over from the Government of Punjab the existing system of State owned irrigation and augmentation 374 tubewells along with connected buildings, assets, works and any of their projects connected with t... |
These assets shall be taken over by the Punjab State Tube well Corporation Limited as contribution by the Punjab Government towards share capital. Ratio |
XXX XXX XXX (19) To enter into any arrangement with the Government of India, Government of Punjab, or any other Government or State or local authority for the purpose of carrying out the objects of the company for the furthering its interests and to obtain from such Government or Authority or person any charters, subsi... |
" Though the Corporation had been formed so long ago with the express object of taking over the tubewells of the irriga tion branch and though it was operating a large number of tubewells on its own account since then, no efforts had been made by the Government to transfer the tubewells belonging to the State to the Co... |
Even under the impugned notification only tubewells belonging to the irri gation branch were transferred but not those which were being operated by the Public Health Department of the same State. Ratio |
The appellants vehemently contended that all these facts clearly showed that the sudden decision in 1982 to transfer the tubewells to the Corporation was intended as a measure of victimisation of the appellants who were only fighting for their rights of equal pay with other tubewell operators in the State. Ratio |
The High Court did not find any substance in this contention. Ratio |
It pointed out that the idea that eventually the tubewells belonging to the State should be transferred to the Corporation had germinated as early as in 1970. Ratio |
Though this was not implemented immediately, a decision to transfer the tubewells to the Corporation had been taken in the light 375 of the recommendations of the Estimates Committee of the Punjab Vidhan Sabha made in the year 1977 78, that is, about three years earlier to the decision of the High Court dated 5.2.1981 ... |
The authorities had placed before the Court the minutes of a meeting held under the chairmanship of the Chief Minister of Punjab on October 18, 1979, wherein it had been decided that, since irrigation from the State tubewells had not developed as expected and the State Government was running into a finan cial loss on a... |
It had also been decided at the meeting that the Government would meet the loss that may be suffered by the Corporation on account of the operation and maintenance of these tubewells. FAC |
In the light of these facts, the High Court held that there was no basis for the allegation of the petitioners that the im pugned notification had been issued mala fide solely with a view to deprive the appellants of the benefits they had obtained from the courts. FAC |
It was pointed out by the High Court that the appellants had subsequently been given all the benefits which they had derived as a result of the writ petitions. FAC |
That apart, it was also found that the Corpora tion had made an offer of re employment to all the appel lants effective from the date of expiry of the notice of their retrenchment by the State Government. FAC |
All this showed, according to the learned Judges, that the sole object of the issuance of the notification was to get rid 'of the tube wells which were the cause of a constant and ever increasing loss to the State exchequer and not any mala fide or extra neous reasons. FAC |
On contention (c), the High Court observed as follows: "So far as the alternative relief of re employment with continuity of service and pensionary benefits in terms of the Punjab Civil Service Rules is concerned, the petitioners cannot be granted the same in view of the provisions of section 25 FF (of the ) as introdu... |
In this regard the petitioners have based their whole claim on certain observations made in two Division Bench judgments of the Bombay High Court, reported as New Cotton Mills Ltd. vs Labour Appellate Tribunal and Others, and N.J. Chavan and Others vs P.D. Sawarkar and Others, A.I.R. 1958 Bombay 133. RLC |
Besides there being dissimilarity of facts in those cases and the instant case, the same relate to a period prior to the insertion of section 25 FF. RLC |
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